Crown says London hockey trial 'a case about consent'

Content advisory: This article includes allegations of sexual assault.

London, Ont. – In the government’s opening statement in the trial of five former members of Canada’s 2018 world junior hockey team, assistant Crown attorney Heather Donkers described an hours-long alleged sexual assault that began early in the morning of June 19, 2018, with a text message sent by Michael McLeod to his Team Canada teammates asking if anyone was interested in participating in a “3 way.”

Donkers told the jury of 11 women and three men in Ontario Superior Court in London, Ont., on Wednesday that the case against McLeod, Alex Formenton, Dillon Dube, Cal Foote, and Carter Hart, “is about consent. And equally important, it is about what is not consent.”

“This case is about whether [E.M.] voluntarily agreed to engage in each and every sexual act that took place, at the time that they happened,” Donkers said. “At the end of this trial, we will ask you to find each of the five defendants guilty of sexual assault because they touched [E.M.] without her voluntary agreement to each sexual act when it took place.”

The five players sat in a courtroom that was packed with the players' families and friends, members of the media, and the public, and listened expressionless as Donkers addressed the jury. The defendants have pled not guilty. If they are convicted, they face up to 10 years in prison. The trial is scheduled to last for eight weeks.

The players are charged with sexually assaulting a woman who is identified in court documents as E.M. in June 2018 at a London hotel following a Hockey Canada golf and gala event. McLeod faces a second sexual assault charge as a party to the offence.

Donkers told the jury that on June 18, 2018, E.M., who was then 20, went out to Jack’s Bar in London with a group of friends and consumed about eight alcoholic drinks over the course of the evening. While she was at the bar, McLeod and Dube were among the hockey players who surrounded E.M. on the dance floor, Donkers said.

Shortly after 1:20 a.m., McLeod and E.M. left the bar together and went to McLeod’s room – Room 209 – at the Delta Armouries Hotel in London where the hockey players were staying. Donkers said E.M. and McLeod engaged in consensual sex.

“Soon after that sexual act ended, the atmosphere in the room changed,” Donkers said. “[E.M.] will testify that she observed Mr. McLeod on his phone and she believed he was messaging people, but she did not know who or what he was messaging.”

Donkers said the jury would see copies of those text messages, “which include messages Mr. McLeod sent to his teammates in a group chat asking ‘who wants to be in a 3 way quick. 209- mikey.’”

“You will also hear that Mr. McLeod went into the hallway and invited people into his room, where [E.M.] still lay, naked, under the covers of the bed,” Donkers said. “Before long, more and more men began arriving in room 209. There were up to 10 men inside this standard-sized hotel room at different points in the night.”

Donkers said E.M. will testify that she felt drunk, surprised by what was happening, and uncertain how to react.

“You will hear from some witnesses that, at different times in the night, [E.M.] was offering to perform sexual acts or was asking whether anyone was going to have sex with her,” Donkers said. “And you will hear from [E.M.] that throughout the night, she was going along with what the men in the room wanted — what she felt that they expected of her — because she was drunk, uncomfortable, and she did not know what would happen if she did anything else.”

Donkers said that McLeod, Hart and Dube obtained oral sex from [E.M.], that without her consent, Dube slapped [E.M.] on her naked buttocks while she was engaged in a sexual act with someone else, that, without her consent, Formenton had vaginal sex with [E.M.] in the bathroom, and that without her consent, Foote “did the splits over [E.M.]’s face while she lay on the ground, grazing his genitals over her face.”

“We anticipate you will hear evidence that at the end of the night, Mr. McLeod sexually assaulted [E.M.] once more by vaginally penetrating her without her consent,” Donkers said.

“…We anticipate you will hear [E.M.] testify that when she was in this hotel room, at age 20, intoxicated, and a group of large men that she did not know were speaking to each other as if she were not there, and then they started telling her to do certain things, she did not feel that she had a choice in the matter. On occasion, she tried to leave the room, but the men coaxed her into staying. And so, she found herself going through the motions, just trying to get through the night by doing and saying what she believed that they wanted.”

Donkers said jury members would hear testimony about two brief videos that were taken by McLeod of [E.M.] towards the end of the night, in which [E.M.] made statements including “it was all consensual.” 

“Please listen very carefully when [E.M.] testifies about what was happening before and during the recording of these videos,” Donkers said. “Pay close attention not only to what was said in these videos, but also what was not said... At the end of the trial the Crown expects to argue that these videos are not evidence of consent to any of the specific acts that the charges relate to.”

Donkers said there would also be testimony about what happened following the evening at the Delta.

“We expect you will hear and see evidence of [E.M.] leaving the Delta hotel in tears and calling a friend in that heightened emotional state, before she took an Uber home and cried in the shower,” Donkers said. “We anticipate you will hear evidence about police being contacted, and then about text messages sent by Mr. McLeod to [E.M.], including a message in which he said: ‘What can you do to make this go away?’”

Donkers said that there would also be evidence about a group chat between some of the members of the team, including all five of the defendants, a few days later, in which there were discussions about what happened at the hotel, and about “making sure they all said the same thing to investigators.”

“We expect you will hear evidence about individual phone calls made by Dillon Dube and Callan Foote asking some of their teammates to leave out what they had each done to [E.M.] when describing what had taken place in the hotel room,” Donkers said.

After Donkers finished her opening statement, London Police Service detective Tiffany Waque began her testimony before a lunch break.

Shortly after the break, Justice Maria Carroccia told the jury that Wednesday's hearing would adjourn early because of a procedural issue that is covered by publication ban.

“Something happened over the lunch hour that I need to think about and to discuss with the lawyers,” Justice Carroccia said.

Court resumes on Thursday morning.